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Getting Nearer and Nearer

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David McNew/Getty Images
A protester at an anti–gay marriage rally, Los Angeles, May 2004

At a minimum, then, there is serious doubt about the single most significant incidence of backlash that Klarman identifies. Klarman acknowledges in a sentence that “scholars have reached mixed conclusions” on whether gay marriage cost the Democrats the presidency in 2004, but he discusses none of the evidence contradicting his account. That evidence suggests that it is just as possible that the gay marriage issue helped Kerry.

Even if the Goodridge decision galvanized gay marriage opponents and united the Republicans in the short term, as Klarman argues, those same effects may hurt the Republicans in the medium to long term. Because young people overwhelmingly favor recognition of gay marriage, opposition to its recognition is likely to make the Republican Party less attractive to new voters. President Obama’s explicit endorsement of gay marriage seems to have had no discernible backlash in this year’s election, as young voters again favored Obama by a large margin.

While it is true that gay marriage decisions have in the short term sparked popular indignation and a political response, it is also true that the overall speed of progress on marriage equality is virtually unparalleled in the history of social reform movements. As the columnist Ellen Goodman put it in 2009, “in the glacial scheme of social change, attitudes [about gay marriage] are evolving at whitewater speed.” As Klarman himself notes:

In the years since Goodridge alone, the pace of change has been extraordinary. In 2003–4, Americans opposed gay marriage by roughly two to one. In the summer of 2010, for the first time ever, a national poll showed a majority of Americans supporting gay marriage.

And he acknowledges that the trend has “accelerated dramatically in just the last three years,” that is, in the wake of pro–gay marriage decisions in California and Connecticut in 2008, and the 2009 decision in Iowa. These changes in public opinion are inconceivable without the gay marriage litigation. Those cases made the once unthinkable a reality, exposed the absence of any good reason for denying gay marriage, and thereby spurred social reform on an issue that the ordinary political process would have preferred to ignore. The litigation helped gay marriage “come out.”

After two hundred pages stressing backlash, Klarman grudgingly admits that for the issue of gay marriage itself, the litigation may well have had a net positive effect, but immediately follows that admission with an assertion that it had negative effects for other gay rights and liberal causes. Gay rights groups have diverted resources to gay marriage that Klarman thinks might have been better spent on other battles, such as ending discrimination based on sexual preferences.

But as the discussion of the 2004 election illustrates, once one moves beyond specific effects on gay marriage itself, one enters a field of virtually unbounded speculation. It is entirely possible that the reversal in public attitudes about gay marriage has made the public more open to other gay rights issues, in part because the image of gays and lesbians seeking to formalize their committed monogamous relationships undermines negative stereotypes of homosexuals as irresponsible and licentious.

Klarman’s concern about backlash is not limited to the issue of gay marriage; he argues more generally that court decisions protecting individual rights that do not already enjoy widespread majority support often spark backlashes that do more harm than good to the cause sought to be vindicated. In other writings, he has made this claim about such landmark constitutional victories as Brown v. Board of Education, which he claims made segregation more tenacious at least in the short term; Roe v. Wade, which inspired the growth of the right-to-life movement; Miranda v. Arizona, which protected suspects from abusive interrogation but also, Klarman argues, inspired Richard Nixon’s “war on crime” and the radical expansion of America’s prison population. He also points out that Furman v. Georgia, which invalidated the death penalty (temporarily) in 1972, revived what had been a waning interest in the death penalty, as thirty-five states enacted new capital punishment statutes in response.

Klarman is surely right that judicial decisions protecting unpopular constitutional rights are likely to spur popular resistance—although, as the gay marriage issue illustrates, it is far from clear that such resistance constitutes a net loss for those seeking to protect the right in the first place. The right-to-life movement has been a force to be reckoned with since Roe v. Wade, but it is also true that in the meantime millions of women have enjoyed the security of that right, with its substantial effects on their freedom to plan their lives and enter the workforce. And surely Nixon’s “war on crime” may well have happened without Miranda, as it was at least as much if not more a response to the riots and rising crime rates of the late 1960s and early 1970s, as well as a a strategic ploy to peel off Southern Democrats. If the “war on crime” would have happened anyway, it’s clearly better that suspects being interrogated in police custody be afforded their basic legal rights.

Klarman insists that his book is not intended to “criticize historical actors for failing to behave differently, nor does it seek to draw confident conclusions about how future reform movements should evaluate the trade-offs between litigation and other methods of pursuing social reform.” But it is difficult to read it as anything but a critique of rights litigation. The critique, however, seems misperceived. The very reason we protect certain rights through constitutions that resist revision by majorities is that some rights by their nature are unlikely to be realized through the ordinary political process—particularly the rights of minority groups, unpopular dissidents, or the criminally accused. If we could rely on the ordinary political process to protect such rights, there would be no need for protecting them through judicial enforcement of constitutional principles. But history shows that we cannot.

Precisely because constitutions are needed to safeguard unpopular rights, protection of those rights is likely to spark a popular reaction. We should hardly be surprised by the reactions Klarman describes. But this does not mean that judicial protection of rights is futile, or counterproductive, as he seems to imply. First, there are instances, and the gay marriage cases may be one, where litigation makes reform more, not less, likely. Where one seeks to advance a right that will simply be ignored by the ordinary political process, going to court is often the only way to be heard. Had Ninia Baehr approached the Hawaii legislature to ask it to enact a statute recognizing gay marriage, she would have been dismissed as a nut. The political process can, and in a sense is designed to, ignore the unpopular cause; not so the courts. It is no accident that legislatures did not even begin to recognize gay marriage until 2009, well after several state supreme courts had prepared the way by finding its recognition constitutionally mandated.

In the case of marriage equality, while politicians and many of their constituents were decidedly hostile, the legal argument was very strong. Klarman shows almost no interest in the constitutional law governing this issue. He barely mentions the reasoning the courts use to conclude that same-sex marriage is constitutionally protected, and devotes only a page and a half of his over two-hundred-page book to an anodyne recitation of the constitutional arguments on both sides. His focus is not on the law, but on public opinion, and he argues that judges insulated from political reactions may set off a backlash because they “may occasionally misread public opinion.”

But reading public opinion is not the judges’ job. Their job is to enforce the law, even if, and especially when, public opinion is against it. It was easy for politicians to reflexively reject the idea of gay marriage as contradicting the traditional definition of marriage. But courts subjected the claim to constitutional analysis. And when one tests the refusal to recognize gay marriage against the constitutional mandates that government treat people equally and respect the dignity of their intimate life choices, the legal argument for requiring recognition of gay marriage is compelling. The Supreme Court has ruled that laws disadvantaging gays and lesbians cannot be defended by resort to moral condemnation or mere tradition. So the states are left to make patently unpersuasive claims that recognizing same-sex marriage will undermine opposite-sex marriage, harm children, or reduce procreation. But there is simply no reason to believe that allowing same-sex couples to marry has any negative impact on heterosexuals’ desires to marry or to have or raise children. And gays and lesbians already have and raise children; no state has articulated a good reason to deny them the opportunity to do so within a sanctioned marital relationship.5

Klarman seems to believe that courts should do no more than follow the election returns, and that when they fail to do so, they only cause trouble. But if that were true, there would be little reason to make rights central to constitutions. We do so, both at the national and the state level, because we have long understood that for all its advantages, democracy is not particularly good at protecting the rights of minorities. If courts do their job properly, they will not always reach results that accord with popular opinion. They will sometimes make decisions that result in short-term backlash. But we might well take that as evidence that they are actually performing the function that we expect from them. And as the gay marriage issue illustrates, courts need not be relegated to playing the part of followers when it comes to social change mandated by constitutional principles.

The Supreme Court has many options in deciding the two gay marriage cases that it has agreed to review this term. It could reject the contention that treating same-sex couples and opposite-sex couples differently violates equal protection—a decision that would set back the cause of marriage equality dramatically. It could declare that equality demands recognition of gay marriage on the same terms as opposite-sex marriage, a decision that would have immediate and wide-ranging consequences for the forty-one states that today do not recognize gay marriage. Or, as is most likely, it could decide the cases in a more nuanced manner, invalidating the federal statute because Congress has no good reason for discriminatorily disregarding state laws respecting gay marriage. The court could also invalidate Proposition 8 on technical narrow grounds that do not immediately implicate the marriage laws of other states.

Whatever the Court does in the short term, however, it seems certain that in the not-too-distant future, we will look back on today’s opposition to gay marriage the way we now view opposition to interracial marriage—as a blatant violation of basic constitutional commitments to equality and human dignity. The Supreme Court’s 2013 gay marriage decisions will be viewed either as the Plessy v. Ferguson or the Brown v. Board of Education of gay rights. The choice should be clear.

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    I analyze the legal arguments used in the same-sex marriage cases in detail in “ The Same-Sex Future,” The New York Review, July 2, 2009. 

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